Court Adjourns Until June 2

Today, May 23, 2016, the first session of the trial in Case 002/02 consisted of submissions and responses by parties in relation to two requests by the Nuon Chea Defense Team and a request by the Co-Prosecution. The first request by the Nuon Chea Defense Team related to the admission of two documents, to which no objection were raised. The request by the Co-Prosecution related to the admission of 47 documents, to which only the Khieu Samphan Defense Team objected. The second request by the Nuon Chea Defense Team was for the Chamber to reconsider the decision on adjournment. After hearing submission of the parties, the Chamber ruled that it would adjourn until June 2, 2016.

 

Submissions Regarding Admission of Documents and Adjournment

All parties were present with the exception of Khieu Samphan Defense Counsel Ms. Guissé, who was absent for personal reasons, and with Nuon Chea following the hearing from the holding cell.

The President then issued an oral decision to admit documents with regards to 2-TCW-816’s testimony today.[1] The two documents in question were assigned numbers E3/9815 and E3/9816. He then said that submissions and responses regarding two requests would be heard: first, in relation to a request by the Nuon Chea Defense Team to admit into evidence two documents pursuant to rule 87(4); second, in relation to the Nuon Chea Defense Team’s request to reconsider the Chamber’s decision to adjourn proceedings. This had been requested in an e-mail on May 20, 2016.

Related to the first request, International Nuon Chea Defense Counsel Victor Koppe explained the relevance of the two documents: The first document was a military court statement by the upcoming witness. The second one was an S-21 list that the witness had been confronted with beforehand.

Mr. Koppe then elaborated on the request to reconsider the Chamber’s decision to adjourn the hearing. He said that the list was based on 871 new documents that had now been admitted into evidence. The Nuon Chea Defense Team had received an e-mail by a legal officer attributing E3 numbers to the 871 numbers. They totaled a number of 6763 pages. Deducting the confessions left another 4731 pages. Mr. Koppe pointed to paragraph 20 of their motion that explained that accessing documents earlier was extremely difficult. Thus, they had not had enough time to prepare for upcoming witnesses. He proposed to start the examination of 2-TCW-816 by the Prosecution and also to start the examination of Duch on Thursday, but give the defense time to prepare afterwards.

The floor was granted to the Co-Prosecution to respond to the request. Senior Assistant Prosecutor Vincent de Wilde said that they did not have any objection to admitting the first document. As for the second document, he said that he did not consider the document relevant for the court. However, this was not a real objection, he said, but pointed out that it would be “unfortunate” to “clog the case file” with this list. He then handed the floor to his colleague to react to the second request.

Senior Assistant Prosecutor Dale Lysak said that they would “strongly oppose the idea that we should proceed”. This was contrary to the principle of equality of arms. He argued that the new OCIJ list was also as new to the Co-Prosecution as to the Defense. As for the issue of resources that had been mentioned by the defense teams, he said that there were 47 lawyers and consultants on the various defense teams, whereas there were only  21 lawyers and consultants in the Prosecution. The Co-Prosecution had chosen a rotation system to manage their resources, but all legal officers worked on all cases. Thus, they had no advantage over the defense teams and might even be at a disadvantage. He argued that they would have to hear the defense’s examination of 2-TCW-816 before hearing Duch. The defense team would present theories during the examination of 2-TCW-816, to which the Prosecution had to be able to react during the examination of Duch.

Mr. Lysak then put forward that the length of adjournment sought was unreasonable. If the defense team sought to prove that there were only 5,000 prisoners at S-21, they “should have started a long time ago” by going through Zylab, for example. Moreover, they had already questioned Duch for two and a half days in Case 002/01 in April 2012. However, he did acknowledge the significance of the new OCIJ list. It seemed that the original number of 12,000 prisoners was too low. Duch himself had recognized this. The list had set out that there were 15,000 prisoners and made it therefore very relevant. Verifying the accuracy of this list was not a matter that could be checked in the court room, but more a matter of checking underlying documents. He then proposed to start with the witness today, start Duch on Thursday, but to split Duch’s testimony up: he suggested to hear Duch’s testimony for five days starting Thursday and then four days that could be delayed until end of internal purges segment. This would give time for all parties to check other documents. He rejected the defense’s argument that they would have to be out of court room to prepare other witnesses, since the matter of checking the list, for example, was a matter for a few people to check documents. The advantage of splitting up his testimony would also have the advantage of being easier for Duch, seeing his age and health conditions.

The floor was granted to Civil Party Lead Co-Lawyers. International Civil Party Lead Co-Lawyer Marie Guiraud said that they had no objection regarding the first application of the Nuon Chea Defense Team. As for the second application, she observed that the Chamber had issued a decision to adjourn for a week on May 12, 2016. Three kind of documents had to be reviewed during this adjournment: the new OCIJ prisoners list; the documents that were used as a base for this list; the new photo album that was provided by DC-Cam. There was a “real problem” with the documents that were used to establish the list: neither the defense, nor the Civil Party lawyers were able to access some of the documents that formed the base for the OCIJ list. This may have implications for the scheduling. This technical issue had to be resolved in a most efficient name. As for the proposal by the Co-Prosecutors, she said that she had to rely on the chamber’s wisdom, but that she had not been able to discuss it with her national colleague Pich Ang.

Khieu Samphan Defense Counsel Kong Sam Onn said that the Khieu Samphan Defense Team had no objection to admitting the documents. As for the request for additional time, he said that they supported the request by the Nuon Chea Defense Team. There were “numerous documents” they needed to study before examining the witnesses. In relation to Duch, he said that they were examining S-21 facts now, which required the study of different facts than for Duch’s testimony in 2012. There had been a decision to have the Co-Prosecution examining a witness first and then adjourn. This was, he said, appropriate in the case of Duch as well.

Judge Fenz sought clarification whether the Co-Prosecution needed additional time as well. Mr. Lysak responded that they would be ready to examine Duch whenever the Trial Chamber would ask them to do so. However, they would also profit from additional time.

Mr. Koppe replied to the responses and said that they had been under the impression that the documents for his first request might have already been admitted and that they would withdraw the request in relation to these documents. As for the second request, he said that “I had to smile a bit” when hearing the Co-Prosecution talk about the significance of the list. He reminded the Chamber that on March 31 that there was “no dramatic new evidence” and that on May 2 they had said that the documents had been around long time. As for the equality of arms, he said that it was a right of the defense and not for the Co-Prosecution. Moreover, it did not apply in this case, since the Co-Prosecution had “all the time” to question Duch and examine the relevant documents in Case 001. The questioning of Duch in Case 002/01 did not relate directly to S-21. He did not understand the resistance by the Co-Prosecution with regards to the proposal to proceed with the examination of the witnesses by the Co-Prosecution and then adjourn. As for the matter of resources, he said that it did “not make any sense”, since he himself had to be in court all the time and could not examine all the documents.

The President asked whether the Defense Team would need only one additional week, since they had had already two weeks of recess. Moreover, he wanted to know whether the Chamber could hear witnesses in relation to other facts. Mr. Koppe replied that they requested three additional weeks after the examination of the Co-Prosecution. As for the second question, he clarified that they needed time without trial.

Mr. Lysak highlighted that the technical issue raised by the Civil Party lawyers could be solved by searching for the ERN numbers and not the E3 numbers. As for the resources, the Co-Prosecutors had to multitask already before. Mr. Koppe had questioned other witnesses extensively on the arrest of cadres. As for Mr. Koppe’s argument that they had not questioned Duch on S-21 in Case 002/01 was wrong. Moreover, the lawyer for the Co-Prosecution who had examined Duch had left by the end of the trial.

Ms. Guiraud said that her team had verified that a significant number of documents were still not available on Zylab or the shared drive. Moreover, she pointed out that in a civil law system, there was no examination in chief followed by a cross-examination. This was different to the common law system and also radically different to the system used at the ICTY.

The President then requested responses to the request made by the Co-Prosecutors of May 5 to admit 47 documents.[2] Khieu Samphan Defense Team requested to delay the response to June 2016.[3] This request had partially been granted and the responses delayed until May 23. Each party was granted twenty minutes to respond. Ms. Guiraud announced that they relied on the Chamber’s witness. The Nuon Chea Defense Team had no observations either. Mr. Sam Onn said that the Khieu Samphan had a few observations relating to the request. He said that they had no objection relating to five documents. On May 16 2016, the Chamber had made a decision to respond to seven documents. He pointed out that they had responded to a similar request five months ago. They had to prioritize their resources to examine the witnesses and had not had time to read all documents that had been requested by the Co-Prosecution to be admitted. They objected on the basis of not being able to respond on time, except for the seven documents mentioned earlier. The other 40 documents, he said, did not fulfil the criteria of Rule 87(4). The Co-Prosecutors had said that they had sought permission by the Co-Investigating Judges to disclose the documents (paragraph 7 of the request). He said that the request by the Co-Prosecutors was tardy. Moreover, the documents were not conducive to ascertaining the truth. They only provided a minimum credibility of these Written Records of Interviews.[4] He queried why the Co-Prosecutors had not requested these witnesses to testify.

He then continued by objecting to specific documents, saying that they were not relevant. Moreover, documents relating to rape and forced marriage of Khmer Krom should not be disclosed, since they were not part of the facts that the Chamber was seized with. He objected to admitting all documents, except the seven documents that were related to witnesses that had been called by the Chamber (numbers 28, 37, 38, 39, 40, 41, and 43 of the annex).

Mr. Lysak responded that this request was not belated, since they were dealing with a new procedure since end of last year. It was a two-step procedure now. He said that this process took more time, but that there had been no lack of diligence. As for the argument that the documents were not relevant, since the Prosecution had not requested the witnesses to testify, Mr. Lysak said that this was because they could only call a limited number of witnesses. This did not diminish the relevance of these Written Records of Interviews. As for the documents related to Khmer Krom, he said that they were interconnected to the treatment of the Vietnamese, which was also shown in the Written Records of Interviews. It would be helpful to admit Written Records of Interviews of witnesses that would come to testify. It would be easier if these did not have to be included in 87(4) motions.

Mr. Sam Onn replied that it was not clear for him what the relation between Khmer Krom and Vietnamese was. He repeated that these documents should not be admitted.

The President announced that the submissions and responses had to be taken into account before issuing the decision. He then adjourned the hearing and announced that they would issue a decision after the break at 13:30.

 

Adjournment

After the break, the President announced that the Court would be adjourned until June 2. They would start with the testimony of 2-TCW-816, followed by the testimony of Duch. The President said that the Chamber would need two sessions for putting questions.

 

[1] E1/36.

[2] E319/47.

[3] E319/47.1.

[4] E313, paragraph 34, and footnote 94.